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For Immediate Release:  
For Further Information Contact:
July 28, 2005

Office of The Attorney General
- Peter C. Harvey, Attorney General
Division of Law
- Nancy Kaplen, Acting Director

 

Peter Aseltine
609-292-4791

 

New Jersey Suing Delaware In U.S. Supreme Court
Attorney General Harvey Asking High Court to Affirm New Jersey’s Exclusive Jurisdiction over Waterfront Projects on Delaware River

TRENTON – Attorney General Peter C. Harvey is filing suit today against the State of Delaware in the U.S. Supreme Court asserting New Jersey’s exclusive jurisdiction over waterfront projects on the Delaware River in Gloucester and Salem counties.

The lawsuit was necessitated by Delaware’s recent assertion of regulatory jurisdiction over proposed construction projects on the New Jersey shoreline of the Delaware River within the so-called “Twelve-Mile Circle,” where Delaware’s border extends to the low water mark on the New Jersey shore.

In March, Delaware denied a permit for Crown Landing LLC, a subsidiary of BP America, to build a pier required for a proposed liquefied natural gas facility in Logan Township, Gloucester County. In May, Delaware issued a lease for the renovation of piers and a marina for “The Riverwalk at Penns Grove,” a 12-acre redevelopment project in Salem County. The piers and marina are located on properties that were previously granted by the State of New Jersey.

“New Jersey should control its own destiny with regard to development along the Delaware River in Gloucester and Salem counties,” said Attorney General Harvey. “There are strong prospects for economic development in this underdeveloped area because of its access to the river and shipping. As our court papers make clear, New Jersey does, in fact, have exclusive jurisdiction over projects on its shoreline under the State’s 1905 Compact with Delaware.”

The court papers, which will be filed later today, are linked to this release at www.njpublicsafety.com. In the papers, Attorney General Harvey challenges Delaware’s actions and asks the Supreme Court to affirm New Jersey’s exclusive regulatory jurisdiction over development on its side of the Delaware River. Attorney General Harvey asks the Court to supplement the decree it issued in 1935 to settle the long-standing boundary dispute between the two States. The U.S. Constitution and federal law require that disputes between states be filed directly with the Supreme Court.

Delaware’s northern boundary, including part of its border with New Jersey, is based on a circle described in colonial land grants to William Penn that has a radius of 12 miles centered at the historic courthouse in New Castle, Delaware. Penn’s claims were disputed in colonial days, and Delaware and New Jersey challenged one another’s territorial claims within the Twelve-Mile Circle almost since their formation as independent states.

In 1935, the U.S. Supreme Court finally resolved the disputed boundary, declaring that Delaware’s border extends to the mean low water line on the New Jersey side in the Twelve-Mile Circle in Gloucester and Salem counties. The border in the remainder of the Delaware River and Bay is the middle of the shipping channel.

Importantly, the Supreme Court’s decision in the boundary dispute specifically protected New Jersey’s rights under the 1905 Compact, which was approved by Congress in 1907. The 1905 Compact resolved various jurisdictional disagreements between the States, while not determining the boundary line. The Compact provides, in part: “Each state may, on its own side of the River, continue to exercise riparian jurisdiction of every kind and nature, and to make grants, leases and conveyances of riparian lands and rights under the laws of the respective states.”

The word ‘riparian’ means pertaining to the bank of a river. “Riparian rights” typically include the right of riverbank landowners to construct wharfs and piers to allow access to navigable waters and shipping channels, subject to regulation by the State. “Riparian jurisdiction” includes the authority of the State to regulate the manner in which riparian owners exercise such rights. By its express terms, the 1905 Compact granted New Jersey the exclusive right to exercise riparian jurisdiction on its own side of the River.

The papers being filed by the Attorney General document the long history of New Jersey’s regulation of riparian improvements on New Jersey’s side of the River. They also document statements made by Delaware in the boundary case in the 1930s in which Delaware conceded both the right of New Jersey citizens to wharf out to navigable water, and the right of New Jersey exclusively to regulate the exercise of those riparian rights. Until recent years, Delaware had not disputed New Jersey’s riparian jurisdiction under the 1905 Compact.

New Jersey’s legal position is supported by a 2003 decision by the U.S. Supreme Court in a very similar case, Virginia v. Maryland, 540 U.S. 56 (2003). Arbitrators in 1877 had awarded Maryland a boundary with Virginia along Virginia’s low water line in the Potomac River, while reserving for Virginia, pursuant to a pre-existing compact, “a right to such use of the river beyond the low water mark as may be necessary to the full enjoyment of her riparian ownership.” In the 2003 case, Maryland claimed the right to regulate the construction of a water intake pipe extending into the river beyond the low water mark on the Virginia side. The Supreme Court held that Maryland lacked authority to regulate the project, based on the prior compact, even though most of the project was located within Maryland’s borders. The Court issued a decree stating that Virginia had a right to use the Potomac River free of regulation by Maryland.

New Jersey is seeking similar relief against Delaware in this case. New Jersey is asking the Court to render a decision in the Court’s next term, which concludes at the end of June 2006.

>> Supreme Court Papers (389k pdf) plugin

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